ED BOARD RISKS LEGAL ACTION AND NATIONAL CENSURE
WITH PROPOSED PERSONNEL CHANGES PDF
Published in the Idaho Press Tribune and the
Idaho State Journal
By Nick Gier, President, Higher Education Council, Idaho
Federation of Teachers, AFT/AFL-CIO
It is rare for the President of the State Board of Education to make an extended public statement, so I appreciate this opportunity to respond to Paul Agidius’ defense of changes to Board personnel policies. (See Agidius’ column below and specific IFT comments to the changes below.) Agidius begins his column with a reference to Charles Dickens’ “worst of times/best of times,” presumably with the intent of presenting a state of balance in Idaho higher education. The facts on the ground, however, force us to conclude that the worst, by far, has the upper hand.
There are indeed a few strong departments left, but most campus units have been devastated by cutbacks, lay-offs, and faculty seeking greener pastures. My own department is now staffed at the level it was when I came in
1972, but it, on average, is servicing five times the number of majors. Furthermore, how can UI offer any Ph.D. degree without the German program that it just cut?
Agidius boasts about what a bargain students are getting on Idaho’s campuses. But since I arrived at the UI in 1972, student fees have risen from $364 to $5,236 per year, a whopping 1,371 percent increase. Agidius’ own office reports that “Idaho’s average 6-year graduation rate of baccalaureate students is 42.9 percent.” On this score we are the 7th lowest in the nation. The national average is 56.1 percent.
If you look at the proposed changes to Board personnel policy, you will find that powers given to the campus presidents are not new; rather, they have been lifted out of the well-vetted financial exigency sections, but without the due process protections for employees that exist there. As a result employee rights are severely compromised.
The faculty senate at Lewis-Clark State College has taken the lead in resisting any changes in personnel policy. Here is the essence of their full statement before the Board’s December 10 meeting: “the Board is engaging in unfair, unaccountable, and unconscionable practices that are contrary to public policy and sound employment principles and violate basic tenets of contract law.”
Latah County (and perhaps many more throughout the state) has declared a financial emergency, and 23 out of 115 school districts have also done this, so why can’t the Board? The Board has insisted that it cannot do this because it would destroy Idaho’s credit rating, but this would apply to counties and school districts as well. Some of us are thinking of other possible reasons:
· Campuses still have reserves, and one cannot blame administrators for putting aside the funds (the BSU financial vice president has just said that there are no more reserves for FY11, from we can infer that reserves were used to meet previous cut-backs);
· The UI Agriculture Dean was thwarted in closing the Parma station because he would have go to a board heavily lobbied by growers and legislators; or
· The Lois Pace case (1981-86), a $1 million settlement financed by the faculty union, stands as an intimidating legal precedent for botched financial exigencies.
The financial exigency policies have been vetted by my national office as well as the American Association of University Professors (AAUP), and the procedures are strong because Elizabeth Zinser refused to assume the UI presidency in 1989 unless they met the highest academic and legal standards. The UI was removed from the AAUP’s national censure list and Zinser became the UI’s 14th president.
Agidius appears to have a rather cavalier attitude towards academic tenure, a property right that can be
removed only in the case of professional incompetence, a felony conviction, moral turpitude, program reduction, or financial exigency. In its proposed changes the Board properly excludes tenured faculty from “reduction in force,”
but another proposed change states that their contracts can be altered. Agidius is simply wrong in assuring us that this is “no different than the process that currently exists.”
At the December meeting BSU counsel Kevin Satterley claims that the law is silent on the question of whether a tenured professor’s salary can be reduced, but our national office has provided us two legal precedents in Montana and Florida that indicate that tenure protects base salary. The union is prepared to use these cases to protect Idaho’s tenured faculty.
Agidius declares that the Board is open to full discussion of these changes. At the October meeting campus representatives were limited to one per campus, and there was only thirty minutes of discussion at the December meeting. (I have been waiting patiently [ten days now] for a response from Agidius to this column.) Will Agidius give more time in February, or are these changes essentially non-negotiable?
The Board has also proposed a major change to its financial exigency policy, removing due process for employees who may be reassigned anywhere in Idaho. At the December 1st UI faculty senate meeting, Agriculture Dean John Hammel stated that, without Board language that would allow it, he could move the Parma faculty to any station he chose.
Before the Parma station was saved by private contributions by growers, Dean Hammel was prepared to close Parma and two other stations using the Board’s program reduction policy. In a December, 2008 legal brief from my national legal office declared that the policy is “severely deficient in terms of procedural due process safeguards.” The procedures “do not comport with Idaho law” and the termination of any faculty member could be challenged in court.
By approving the proposed changes to its personnel policies or eliminating programs, the Board is risking not only court action on behalf of faculty and staff, but also an investigation by the AAUP and the possibility of placing the entire college and university system on its national black list. I beg the Board to reconsider these unwise and arguably illegal moves.
RESPONSE TO REVISIONS TO SBOE GOVERNING
POLICY AND PROCEDURES
(December 9, 2009)
By Nick Gier, President, Higher Education
Council, Idaho Federation of Teachers, AFT/AFL-CIO
With the help of national AFT counsel Daniel McNeil, I offer the following comments below. We are pleased that the ill-advised revisions of August have been withdrawn, but we are troubled by the fact that the campus senates, after being challenged to come up with their own language, have now been preempted by these new revisions from the Board.
1. Confusion about Board Authority. There appears to be a conflict between II.B.2.a and II.B.2.b. The former section gives final authority to the Board, but the latter seems to give final authority to campus executives in key areas of personnel management “except or unless as limited by other applicable provisions of Board or institutional policy.” The IFT Higher Education Council prefers to leave all final decisions on these essential matters with the Board.
2. Campus executives already had this power. In its original language the third paragraph of II.N.1 states that the “organizational structure, duty assignments, FTE count, place of work, shift placement,
salaries, work hours, benefit determination and reductions in force and all similar and related work place decisions are the prerogative of the chief executive officers.” This identical language has now been moved to II.B.2.b, but we again much prefer the stipulation that these campus decisions are “subject to the reserved authority of the Board where applicable” (II.N.1, para.3) and cannot be exercised without a declaration of financial exigency.
3. Insufficient Due Process. Although we approve of the provision in II.B.2.d to allow in-put from affected units, there is no right to appeal any executive decisions. The financial exigency policy in II.N contains provisions for notice, in-put, and appeal that have been vetted by our national legal office and the American Association of University of Professors. Due process in II.B.2.d should be no less than that provided for financial exigency. Without full due process the rights of Idaho’s higher education employees are severely
4. Rights of Tenured Faculty. Section II.B.2.c properly excludes tenured faculty members from any “reduction in force,” but II.G.c states that the salaries of both tenured and non-tenured faculty may “not be
guaranteed . . . in subsequent contracts or appointments.” Our associate counsel has discovered at least two legal precedents that establish that tenure protects base salary. Tenure has long been recognized as a property right, and the judges in these cases ruled that one’s base salary is part of that property.
5. No Due Process for “other than layoff” under Financial Exigency. We are deeply troubled by the deletion of subsection 7a-b under II.N. At the December 1st UI faculty senate meeting, Ag. Dean John Hammel stated that he could have moved the Parma faculty to any other station he chose. Removing this subsection would allow all campus administrators to do this under financial exigency without giving the employees any due process at all.
6. Program Reduction Policy “Severely Deficient.” Recently the University of Idaho filed “notices of intent” to close the research and experiment stations at Sandpoint, Tetonia, and Parma. Section III.G was citing as the specific authority to do this. In a December, 2008 legal brief national AFT associate counsel Samuel J. Lieberman declared that the policy is “severely deficient in terms of procedural due process safeguards.” He states that the procedures “do not comport with Idaho law” and the termination of any faculty member could be challenged in court.
These procedures were hastily devised (complete with jumbled syntax) in October 2002 in order to close programs in geological and mining engineering, and since then the IFT Higher Education Council has been requesting that they be revised to meet minimal legal and professional standards.
Ed board looks to give presidents budget tools
Paul C. Agidius. Moscow-Pullman Daily News, December
“It was the best of times; it was the worst of times,” Charles Dickens wrote in his work, “A Tale of Two Cities.”
It also is the tale of higher education in Idaho. Currently students in Idaho enjoy some of the best-quality programs at some of the best rates in the country; the best of times.
It’s also becoming the worst of times. Eroding financial support for Idaho’s higher education system is quickly approaching levels last seen in 2004. Budget cuts, midyear holdbacks, uncertainty abounds about future funding and how our distinguished institutions, students and staff will survive.
The Idaho State Board of Education recently heard the first reading of a proposed change to its policy that would give more flexibility to Idaho’s public university/college presidents in managing these changing budgets. For some, they believe that this proposed change would lead to the worst of times, for others, the effects would be far less severe.
It’s important to reiterate that the board has the upmost confidence in its presidents and their ability to most effectively determine specific courses of action that will have the most benefit and the least amount
of detrimental impact on their specific institutions.
The board took the unprecedented step earlier this year to approve multiyear contracts for the presidents – an endorsement of the quality of people holding those positions and the work they have done and will do for Idaho. These presidents, should this policy change be approved, would have the latitude to order changes in contracts including furloughs as necessary for all employees on their campuses. Yes, this would include tenured faculty. However, any changes to employment to tenured faculty would have to be implemented uniformly college by college or unit by unit. Simply put: A president could not single out individual faculty members for salary reduction or elimination without cause, no different than the process that currently exists.
A second reading of the policy is scheduled to take place when the board meets Feb. 18 in Boise. The board must adopt the second reading for the policy to take effect. We have had significant input and collaboration with
faculty senates, administration and stakeholder groups throughout this process. Working together is how the best public policy is forged and we welcome everyone and their thoughts and ideas.
Many Idahoans who work on our campuses have already participated in severe cost-cutting measures to help the institutions meet the budget reductions as ordered by Gov. C.L. “Butch” Otter. Numerous fellow state workers have been furloughed. It’s not easy, nor desirable, but necessary. Idaho’s strong sense of fiscal responsibility has kept our state in much stronger shape than many of our neighbors. We must continue our approach if we are to help lead our economy to better times.
Education is a key to our long-term viability as a state and as a nation, in particular post-secondary education. Whether we want to acknowledge it, the reality is we live and compete in a global environment. Idaho graduates today not only compete with fellow graduates in neighboring states for jobs but with similar students in the Far East, Europe, Australia and beyond. The need for our graduates to be properly prepared for this global
marketplace is not going away because of the current recession. In fact, it heightens that need. Being competitive and viable is a must. And if we are to keep our institutions operating sufficient to produce those graduates, those who manage the resources and people on the campuses must have all the tools available to do the very difficult job at hand.
The State Board of Education is constitutionally mandated to provide “general supervision of all education” in the state of Idaho. This requires giving those we hire and charge to manage our colleges/universities the wherewithal sufficient to do so.
Difficult times are here. While we all work and hope for better times to come forward, in the interim, we must consider all potential solutions to the challenges at hand, no matter how difficult those choices may be.
Paul C. Agidius lives and works in Moscow and is the current president of the Idaho State Board of Education.